Kinds of corporation Stock corporation- dividends are received by the stockholders as return of investment. 2. Non-stock corporation- organized for charitable purposes and civic investments The articles of incorporation are binding within the period of 6 months. The general rule is that a corporation is vested by law with a personality separate and distinct from the persons composing it, including its officers as well as from that of any other legal entity to which it may be related. Accordingly, corporate officers acting within the scope of their authority are not personally liable for damages or labor claims of its employees, unless it is alleged and shown that such officers deliberately and maliciously designed to evade the financial obligation of the corporation to its employees, or used the corporate fiction as a means to perpetrate an illegal act or as a vehicle for the evasion of existing obligations, the circumvention of statutes, or to confuse the legitimate issues, in which case the separate corporate personality is disregarded. The by-laws are the governing rules and regulations of the corporation. The members should not be less than 5 but not more than 15. It should be registered at the Securities and Exchange Commission (SEC). In order that the SEC can take cognizance of a case, the controversy (INTRACORPORATE CONTROVERSY) must pertain to any of the following relationships: 1. between the corporation, partnership or association and the public 2. Between the corporation, partnership or association and its stockholders, partners, members, or officers. 3. between the corporation, partnership, or association and the state in so far as its franchise, permit or license to operate is concerned 4. among stockholders, partners or associates themselves The SEC is vested with the jurisdiction, supervision and control over all corporations which are enfranchised to act as corporate entities. The fact that a corporation which requires a license or permit from another government agency does not restrict such supervision. The corporation continues to be vested with legal personality until it is dissolved according to law and SEC continues to have jurisdiction over it. Meetings of the directors must be personal while stockholders meeting, proxy voting is allowed 1. Any natural person can become incorporators except under the Rural Banking Act in relation to the Development Cooperative Law. But a corporation can become a subscriber of a corporation. Composition of articles of incorporation 1. Name Must not be misleading Must not be a name of a past president Must not be in resemblance with the Phil flag 2. Name of incorporators 3. address of incorporators The incorporators are the original signatories of the corporation The capital of the corporation has no limit but must not be less than Php 5,000.00. Differentiate Corporators from Incorporators INCORPORATORS Signatory of Articles Do not cease to be such Number is limited to 5 to 15 Must have contractual capacity Temporary Officers 1. President- must be a stockholder of the corporation 2. Secretary- may not be a stockholder 3. Treasurer- may not be a stockholder Contribution 1. money The general rule is that a check is not allowed except if it is a managers check or cashiers check 2. services The general rule is that it is allowed except if it is for future services 3. valuables It should be with something of value and must be appraised by a committee to determine its value The treasurers affidavit should be 25% of capital actually subscribed and 25% of it is already paid. The lifetime of a corporation is 50 yrs and must be renewed on the 45th year. An advantage of a corporation is that it can obtain loans from banks. The certificate of incorporation is issued by the SEC as a proof of the existence of a duly registered legal and organized corporation. CORPORATORS Stockholder of stock corporation or member of non-stock corporation Cease to be such if they are no longer stockholders No restriction as to number May be such through his guardian
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corporation's existence does not depend on the consent of the state. it remains a legal entity despite lack of consent and concession there from.
A corporation is independent from Governmental control, rules and regulations Capital Stock There is no maximum capital of the corporation, but the minimum is five thousand pesos ( Php 5,000.00). 25% of the capital stock must be
Doctrine of Corporate opportunity The doctrine states that if there is presented to a corporate officer or director a business opportunity for which the corporation is financially able to undertake, is from its nature in line with the corporations business and is of practical advantage
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Note: there are express powers that are incidental powers like the power to acquire property. A corporation can exercise not only powers expressly conferred upon it by its charter but also those that may be reasonably necessary or proper to promote the interest or welfare of the corporation. If the act is one which is lawful in itself, and not otherwise prohibited, is done for the purpose of serving corporate ends, and is reasonably tributary to the promotion of those ends, is a substantial, and not in a remote and fanciful sense, it may fairly be considered within the charter powers. The test is whether the act is in direct and immediate furtherance of the corporations business, fairly incident to the express powers and necessary to their exercise. If so, the corporation has the power to do it; if otherwise, not. Ultra-vires Acts corporation outside the powers of the Kinds 1. void per se (illegal act)- void abinitio 2. voidable- valid until annulled\ four (4) years prescription 3 stages of voidable ultra vires acts 1. executory on both sides 2. executory on one side/executed on other side 3. already executed by both parties Kinds of Ultra Vires Acts 1. executory on both sides this could be set aside. 2. Executor on one side and executed on the other side if the corporation has already received the benefits, it must honor the contract 3. Executed on both sides if both parties have already benefited, both should honor a contract Nationality of a Corporation(Grandfathers Rule) The citizenship of a private corporation registered in the Philippines is determined by the citizenship of the controlling stockholders, in accordance of the control test. It is also the place of incorporation or where the or where the corporation is organized. Control test In times of war, the corporations in the Philippines are controlled by the enemies
1.
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b. Implied powers those that can be inferred from or necessary for the exercise of the express powers - those agreed upon
Kinds of shares/stocks
It is an incorporeal or intangible property It may be issued by the corporation even if the subscription is not fully paid Watered stock
Watered stock is those issued not in exchange for its equivalent either in cash, property, share, stock dividends, or services; thus, the issuances of such stocks are prohibited. These include stocks: a. Issued without consideration (bonus share) b. Issued as fully paid when the corporation has received a lesser sum of money than its par or issued value(discounted share) c. Issued for consideration other than actual cash (i.e. property or services), the fair valuation of which is less than its par or issued value d. Issued as stock dividend when there are no sufficient retained earnings or surplus to justify Note: Directors or officers who consented to its issuance is solidarily liable to the corporation for the difference in value Stock and transfer books are the responsibility of the secretary who is in-charge of transferring shares for which he must file a surety bond to protect the stockholders. A corporation by prescription is a corporation that need not to be registered because they already existed before the effectivity of the corporation code, they antedated the corporation code (churches)
The Board of Directors is the governing body of the corporation composed of 15 members. Only natural persons can become incorporators exception is the Rural Bank Act in relation to the Cooperative Development Act for which the cooperative can borrow money from the rural bank, therefore, the rural bank may become an incorporator. Requirements for corporation 1. not less than 5 persons but not more than 15 2. agreement is good for 6 months 3. articles of incorporation 4. by laws 5. treasurers affidavit Proxy Voting It is not allowed in meeting of directors but it is allowed in stockholders annual meeting, it is also allowed if there is an SPA Rights of a stockholder
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1.
to receive dividends
Pre-emptive right is the right of first refusal, the stockholder sells his shares first to co-stockholders before selling to the public Appraisal right is the right of the stockholder to determine the price of his share. If there is a conflict in the decision, they shall form a 3-man committee to determine the price, the decision of the 3-man committee is final. A close corporation is a family corporation composed of the members of the family, nonmember of the family is not allowed(20 members)
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4. up to forty percent (40%) foreign equity a. Exploration, development and utilization of natural resources (Art XII, Sec 2, Constitution) b. Realty companies and other corporations that own private lands (Art XII, Sec 7, Constitution) c. Operation and management of public Utilities (Art XII, Sec 11, Constitution) d. Culture, production, milling, processing, trading except retail of rice and corn and by-products (Sec 5, PD No 194; Sec 15, RA No 8762 e. Adjustment companies (Sec 323, PD No 612) f. Sauna and steam bath bathhouses, massage clinics and similar activities (RA No 7042)
5. up to sixty percent (60%) foreign equity a. Financing companies (Sec 6, RA No 5980, as amended by RA No 8556) b. Investment houses (Sec 5, PD No 129, as amended by RA No 8366)
Foreign Corporation power to sue and be sued Suit by a foreign corporation the foreign corporation transacting business in the Philippines without a license to do business shall not be permitted to maintain or intervene in any court or administrative agency. b. Suit against a Foreign Corporation Any foreign corporation transacting business in the Philippines whether or not with a license, may be sued against/before Philippine Courts or administrative tribunals on any valid cause of action recognized under Philippine Laws (Doctrine of Quasi- Estoppel by acceptance of benefits)\ Kinds of Suit Class Suit there are many stockholders who have the same problem, but a few of them can file the suit in their behalf 2. Individual Suit a stockholder whose right have been violated 3. Derivative suit the officers and directors are the ones liable, hence any stockholder can sue in behalf of the corporation Remedies in a corporation Rehabilitation- if the corporation cannot pay the obligations on time, it should file in court a case of rehabilitation 2. Conservatorship- there is mismanagement in the corporation; the SEC will assign/appoint a conservator to manage the corporation and to have a better management. The period for conservatorship shall be 0ne (1) year, the 1. 1. a.
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2 kinds of stockholder Preferred stockholder- an investor of the corporation. Not entitled to vote, when the corporation is dissolved, return of investment is first given to the preferred stockholder 2. common stockholder- with voting rights both are required to vote in the following instances: 1. 2. 3. 4. 5. 6. dissolution of corporation (2/3) merger/consolidation shortening or extending corporate life management contract investment of funds amendments of incorporation 1.
the membership to a non-stock corporation is nontransferable a non-stock school can demand tuition fees but it cannot be used to diem of the Board of Directors but the improvement if facilities and wages of teachers. an increase in increase the per can be used for increase in the
Grounds for dissolution 1. violation of corporation code 2. insolvency 3. shortening of corporation code(corporate life) Stages of dissolution 1. dissolution- upon filing of petition, the corporation shall cease its business operation (It cannot transact business anymore) a) voluntary- the stockholders pass a resolution thru the BOD to dissolve/shorten the life of the corporation b) involuntary- upon petition of 3 creditors/upon order for violation of corporation code(failure to submit annual report, failure to keep record of book of corporation)
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2. Liquidation- 5 years period of liquidation-the SEC shall appoint a receiver who shall collect the debts and assets of the corporation. (to recover debts due to the corporation) 3. Winding-up all obligations of the corporation have been settled 4. Distribution of the assets of preferred stockholders